(PC) Ford v. Fiori ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARCEL D. FORD, Case No. 1:23-cv-00950-BAM (PC) 10 Plaintiff, ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY ACTION SHOULD NOT BE 11 v. DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST PRIOR TO FILING 12 FIORI, SUIT 13 Defendant. (ECF No. 1) 14 TWENTY-ONE (21) DAY DEADLINE 15 16 Plaintiff Marcel D. Ford (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated on June 18 26, 2023. (ECF No. 1.) 19 Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be 20 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 21 prisoner confined in any jail, prison, or other correctional facility until such administrative 22 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust 23 the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 24 (2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). Exhaustion is required 25 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 26 Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits 27 relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002). 28 In the complaint, Plaintiff states that there is an inmate appeal or administrative grievance 1 process available at his institution. (ECF No. 1, p. 1.) Plaintiff checked the box that he 2 “exhausted” to the highest level but says the “all complaints have been sent to chief of appeals.” 3 Id. It is therefore unclear from his allegations if he exhausted his administrative remedies, given 4 that the claims arise from an incident that occurred on May 18, 2023, and this complaint was 5 signed by Plaintiff on June 7, 2023. (Id. at 4, 6.) 6 Based on the information provided, it appears Plaintiff filed suit prematurely without first 7 exhausting his administrative remedies in compliance with the PLRA, section 1997e(a). 8 Accordingly, Plaintiff is HEREBY ORDERED to show cause within twenty-one (21) 9 days from the date of service of this order why this action should not be dismissed, without 10 prejudice, for failure to exhaust prior to filing suit. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 11 (9th Cir. 2014) (in rare cases where a failure to exhaust is clear from the face of the complaint, it 12 may be dismissed for failure to state a claim); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 13 2:16-cv-0765 AC P, 2016 WL 6038181, at *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from 14 the face of the complaint and any attached exhibits that a plaintiff did not exhaust his available 15 administrative remedies before commencing an action, the action may be dismissed on screening 16 for failure to state a claim.”); Lucas v. Dir. of Dep’t. of Corrs., 2015 WL 1014037, at *4 (E.D. 17 Cal. Mar. 6, 2015) (relying on Albino and dismissing complaint without prejudice on screening 18 due to plaintiff’s failure to exhaust administrative remedies prior to filing suit). 19 IT IS SO ORDERED. 20 21 Dated: July 17, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28